Citation Nr: 0115684
Decision Date: 06/07/01 Archive Date: 06/13/01
DOCKET NO. 00-08 666 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for tension headaches.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M.G. Mazzucchelli, Counsel
INTRODUCTION
The veteran served on active duty from June 1968 to February
1969. This appeal arises from a July 1999 rating decision of
the Department of Veterans Affairs (VA), St. Petersburg,
Florida, regional office (RO).
REMAND
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law
redefines the obligations of VA with respect to the duty to
assist and includes an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits. This law also eliminates the concept
of a well-grounded claim and supersedes the decision of the
United States Court of Appeals for Veterans Claims in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000)
(per curiam order), which had held that VA cannot assist in
the development of a claim that is not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the VCAA, a
remand in this case is required for compliance with the
notice and duty to assist provisions contained in the new
law. In addition, because the RO has not yet considered
whether any additional notification or development action is
required under the VCAA, it would be potentially prejudicial
to the appellant if the Board were to proceed to issue a
decision at this time. See Bernard v. Brown, 4 Vet. App. 384
(1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992)
(published at 57 Fed. Reg. 49,747 (1992)). Therefore, for
these reasons, a remand is required.
In an effort to assist the RO, the Board has reviewed the
claims file and identified certain assistance that must be
rendered to comply with the VCAA. However, it is the RO's
responsibility to ensure that all appropriate development is
undertaken in this case.
The veteran contends that she has a chronic tension headache
disorder that began during her period of active duty. The
available record shows that the veteran currently has various
diagnoses reflecting her ongoing complaints of headaches.
During service in Setpember 1968, she was seen with
complaints of headache diagnosed first as muscle contraction,
and two days later as tension headache. The veteran
complained of headaches on a June 1989 VA examination. No
records of treatment from 1969 to 1989 are presently in the
claims folder.
The RO denied the claim for service connection as not well-
grounded. As the VCAA specifically struck down that basis
for denying claims, the Board is of the opinion that the
veteran should be given an opportunity to submit (preferably
medical) evidence that headaches were present in the years
following service or that her current headaches are related
to an incident of service or the headaches noted during
service.
The veteran should be scheduled for a VA examination to
ascertain the current diagnosis, and etiology, of her
reported headaches.
The Board also notes that the veteran reported recent
treatment for her headache disorder on a statement received
in March 2001. She submitted some records of treatment along
with this statement. It is unclear whether the records
submitted are complete or whether treatment by these
providers is ongoing. The RO should review the veteran's
statement and obtain any records that are not currently of
record.
Accordingly, this case is REMANDED for the following action:
1. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.
2. The RO must obtain and associate with
the claims folder copies of all medical
records of treatment of the veteran not
currently of record from the sources
noted by the veteran on her March 2001
statement, i.e., Jubran A. Hoche, MSC;
M.D.; 3911 Hollywood Blvd., Hollywood, FL
33021 and MSPT Goodfrey Murray, 18383 NW
27th Ave., Miami, FL 33056.
3. The RO should contact the appellant
and inform her that in order to
substantiate her claim she should attempt
to provide (preferably medical) evidence
that headaches were present in the years
following service or that her current
headaches are related to an incident of
service or the headaches noted during
service. If any medical treatment was
provided the veteran shortly after her
separation from service for headaches,
she should be informed that those records
may be helpful to her claim. Any
assistance required in obtaining any
identified records should be provided.
4. The veteran should be scheduled for a
VA examination to ascertain the current
diagnosis, and etiology, of her reported
headache disorder. The examiner should
review the claims folder, including the
service medical records and any
additional records obtained pursuant to
the above development, and comment on the
likelihood that any current diagnosis of
a headache disorder is related to the
inservice headache complaints. The
examiner must include complete rationale
for all conclusions.
5. Thereafter, the RO should
readjudicate the appellant's claim on the
merits. If the benefit sought on appeal
remains denied, the appellant should be
provided a supplemental statement of the
case (SSOC). The SSOC must contain
notice of all relevant actions taken on
the claim for benefits, to include a
summary of the evidence and applicable
law and regulations considered pertinent
to the issue on appeal. An appropriate
period of time should be allowed for
response.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded to the regional
office. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
MICHAEL E. KILCOYNE
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).